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Estate Planning Avoids the Free-For-All


You have probably heard the stories about what happens when a family member dies without doing any estate planning… and if you have not heard them, I could fill a book!

The vacuum left by the death of a loved one sometimes leads to some strange and unfortunate reactions. Perceived slights or unfairness during life are magnified after death. Hidden feelings of envy come bubbling to the surface. Seemingly contained family dysfunctions often erupt when a matriarch or patriarch of the family dies.

Unfortunately, the stuff of dark comedies or suspenseful mysteries surrounding the death of a loved sometimes play out in real life. Furniture and cherished belongings go missing. Family fighting having roots so far back no one remembers anymore manifest in the scramble to obtain control when the dearly departed is gone.

Even in loving families, which are treasures to be appreciated, the lack of adequate estate planning adds tension, anxiety, uncertainty and complication to the weight of loss and grief with which the family labor in the wake of the death of a loved one.

How do you want your family to remember you?

Not doing any estate planning means that your loved ones will be left with a more difficult, complicated, anxiety-filled task of picking up the scattered pieces you leave behind, and it opens up the possibility of some family members taking advantage of the vacuum you have left to the determent and permanent hard feelings of other family members. If you care about your legacy and care about your loved ones, your will plan out how your estate should be handled.

Here are five reasons to do your estate planning regardless of the size of your estate.

1. Executor – Choose who will handle the administration of your estate. Without a Will anyone can assert control to the detriment of others. choose the right person who will carry out your wishes and treat everyone fairly. I have observed over and over again situations in which some family members rush in and clean out the house, take the best things for themselves (or are accused of doing that) and families are torn apart forever. This is a worst case scenario, but I have seen enough of the worst case to know it happens often. If you do not have anyone in your family who you can trust to do the right thing, choose someone who will, even it is a bank trust department.

2. Beneficiaries – Choose the beneficiaries of your estate. Without a Will, the beneficiaries will be determined by state statute.You should be the one to choose who gets your estate. In estates where no planning is done, the door is left wide open for unscrupulous family members to step in and clean out bank accounts and belongings anyone gets wise to it. Once it is gone, it is hard to recover. The people you want to receive your estate may not receive it. The cost of attorneys’s fees and the uncertainty of the probate process often mean that the unfairness never gets addressed.

3. Guardian – Choose who will raise your children and who will oversee the assets left to them. Without a Will, anyone willing to take your children in may claim them, even if their motives are not pure. Your children may get split up or be taken in by people who are not looking out for their best interests. Even if a court or DCFS is involved, there is not assurance your children will be well served. Even if the other parent survives, if you were divorced or separated or there are issues with the other parent, you may need to take steps to protect the assets so that they are used for your children’s benefit.

4. Distribution of Estate – Choose how much of your estate is distributed to which beneficiaries and how it will be distributed to them. I have already highlighted that estates often get looted when there is no planning or inadequate planning. If the estate even goes to court, state statue determines who gets your estate and in what the proportions, and the assets will go directly to your heirs without any oversight. That may not be the best result, and without some protection, the assets may be squandered quickly away. You can protect the assets if you plan ahead.

5. Children – Choose someone to supervise assets left to minor children. Assuming that your children get your assets, and that is what you intend, without a Will, your children will receive the assets outright when they reach legal adulthood (18). A Will allows you to keep the assets protected and available for your children’s needs until they reach an age when you have confidence they will be able to handle what you have left to them responsibly. You can make sure the assets are used for things like college instead of youthful indiscretions. If there is any concern about a the poor judgment of the parents or guardians of the children, you need to protect the assets and provide some oversight of the assets you wish to leave to them.

These are just the very basic considerations, but there are many others. How you hold title to your assets affects how your estate is distributed and who receives it. Many people make mistakes in adding children’s names to bank accounts and other assets, not realizing that only those children named will receive them when you are gone. There is no legal obligation to share them with your other children even if you have asked them to do that; and sharing them is a gift with gift tax consequences.

I answer questions for people on AVVO about estates and estate planning issues. The general circumstances I have mentioned above are much more common than people care to admit. People die leaving messes for their families to deal with; and a lack of estate planning opens the door for greedy children, second spouses and even non-family members to take control of estates to the exclusion of the children or other close family members.

People often wonder what can be done to make things right in those situations, but it is often too late by the time the questions are being asked, too costly or too difficult to right the ship. The cost to hire an attorney to obtain information and to challenge what has been done is usually too great an obstacle, coupled with the uncertainty of not knowing exactly what happened and the difficulty in undoing the damage. Most of the time the injustice never gets addressed.

The failure to plan leaves your estate open to many potential problems and many risks that can be simply avoided with a proper estate plan.

You can prevent injustice from occurring and establish clarity and fairness in the handling of your estate when you die by doing your estate planning. Your loved ones will appreciate you for it. Doing your estate planning is an act of love and compassion for your family. Doing your estate planning avoids the free-for-all that often occurs when a person dies.

If you have not done your estate planning, do not put it off. A good attorney will make the process easy. He or she will fill in the gaps in your understanding, provide you options and prepare documents that will ensure your wishes are carried out when you are gone and that your loved ones are treated fairly.

You do not know what tomorrow may bring. Do not put off to tomorrow what you can do today. Do not leave a mess behind for the people you love.

If you do not have an attorney, CONTACT US. We would be glad to help you.

Kevin G. Drendel
Drendel & Jansons Law Group
111 Flinn Street
Batavia, IL 60510
630-406-6179 fax
[email protected]